“The Supreme Court’s ruling in Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, Inc., et al., could undermine a central goal of the Patient Protection and Affordable Care Act (ACA): to expand access to health care by creating a system in which access to health care is based on need and not on ability to pay,” says Michael Gusmano, a research scholar at The Hastings Center who studies health care equity. His commentary appears in Bioethics Forum, the blog of the Hastings Center Report.

What is it?

The plaintiffs are the owners of Hobby Lobby and Contestoga Wood Specialties, two family-owned, for-profit corporations, who have religious objections to the ACA’s requirement that employment-based group health insurance plans provide access to all contraceptive methods approved by the Food and Drug Administration. Their particular objection is to emergency contraceptive pills and IUDs, which prevent implantation of a fertilized egg, a process that the plaintiffs believe causes abortion. While religious institutions are exempt from the ACA’s contraceptive mandate and nonprofit religious organizations can get around it by requesting a religious accommodation, the government made no such provisions for for-profit corporations. Companies that do not provide contraceptive coverage are subject to a substantial fine. In a 5-4 decision, the Supreme Court sided with the plaintiffs. Specifically, it said that for closely-held for-profit corporations (private companies held by five or fewer individuals) whose owners have religious objections, the mandate violates the Religious Freedom Restoration Act of 1993, which says that “governments should not substantially burden religious exercise without compelling justification.”

News in context

There are dozens of lawsuits challenging the ACA’s contraceptive mandate and much speculation on the implications of the Hobby Lobby decision. Justice Alito argued that the Hobby Lobby ruling “should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fail if they conflict with an employer’s religious beliefs.” But in her dissent Justice Ruth Bader Ginsberg categorized the ruling as “a decision of startling breadth.” She said that “the Court holds that commercial enterprises . . . can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

Gusmano concludes that the Court’s decision forces us to revisit the wisdom of linking health insurance to individual employers. “Even if the decision does not allow closely held corporations to refuse coverage for other types of health care services, it is likely to limit access to contraceptive services to many women,” he writes. “Without an alternative source of funding for these excluded services, the decision will shift the cost of health care to individuals, a problem that has been growing and that the ACA was designed to alleviate.”

He also sees restrictions on access to care. “Although this ruling is not designed to engage directly in the broad normative debate about how we ought to allocate health care, it is likely to have the consequence of increasing health care inequalities by making access dependent on ability to pay,” he writes. “Coupled with the Court’s decision in National Federation of Independent Business v. Sebelius, in which the Court ruled that states do not have to participate in the law’s Medicaid expansion, Burwell v. Hobby Lobby Stores threatens to undermine the ACA’s goal of moving the U.S. closer to the international standard of basing access to health care on need.”